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January 25, 2005

Is there a "new right" on criminal sentencing issues?

I have noted in previous posts the interesting new reality that now Republicans, far more than Democrats, are promoting what might be called progressive sentencing reform. Recall that, as detailed here, it was Republican Senators on the Senate Judiciary Committee who were questioning AG nominee Alberto Gonzales about prison reform and rehabilitation. (Kansas Sen. Brownback spoke of prison reform as "a compassionate conservative topic"; Oklahoma Sen. Coburn said, "As a physician, I believe that we ought to be doing drug treatment rather than incarceration."; Pennsylvania Sen. Specter spoke of the importance of providing some prisoners with "literacy training and job training and drug rehabilitation.")

Moreover, as noted previously here and here, Republicans Governors have often led efforts in many states to cut back on harsh mandatory sentences and to expand treatment-centered alternatives to incarceration. (Recall, as just one recent example detailed in this LA Times article, that Republican Governor Arnold Schwarzenegger has announced a plan for California's prisons to "emphasize rehabilitation, marking a shift away from an era when punishment was the overriding mission.")

Part of what makes these issues so interesting and dynamic is that sentencing reform (especially in the federal system) can appeal in various ways to different wings of the Republican party. Republicans who favor small government (or at least small federal government) might well be distressed by the size and power of the federal criminal justice machine. Consider in this vein the advocacy of Timothy Lynch, director of the Cato Institute's Project on Criminal Justice, in this piece about Booker which appeared in Legal Times yesterday. Lynch urges President Bush and Congress in response to Booker "to consult the long-term, strategic vision that can be found in the legal opinions of Justices Antonin Scalia and Clarence Thomas." For Lynch this means, inter alia, that "Congress should jettison the real-offense sentencing paradigm and move to a convicted-offense model" and that "President Bush and Congress should appoint a blue-ribbon commission with a mandate to propose a rollback of the federal criminal code."

Meanwhile, for the religious wing of the Republican party, concepts of redemption and forgiveness have often made religion a progressive criminal justice force in areas ranging from advocating abolition of the death penalty to faith-based prison programming. (I touched on some of these issues in this prior post.) Consider in this vein the advocacy of Mark Early, the President of the Prison Fellowship. In this commentary praising Booker, Early asserts, based on his experiences counseling prisoners, that the federal guidelines "have not produced justice, only bitterness." He likewise calls upon Congress to do better and says "Christians, who understand that doing justice is a matter of wisdom, not fear, should give their representatives the permission they need to resist political posturing and undo past mistakes. Then, perhaps the fairness and wisdom of our system will also be beyond any reasonable doubt."

Of course, the coming debate over the post-Booker future of the federal sentencing system will be a dramatic and important test of whether there really is a new political order in the arena of sentencing reform. Perhaps Blakely and Booker, in the votes of Justices Scalia and Thomas, can be seen as an example of this "new right" in the judicial branch. It will be interesting to see if other examples may emerge in the legislative and executive branches in the days ahead.